R v Christodoulou [2005] NSWSC 1362

New South Wales Supreme Court

CITATION : R v Christodoulou [2005] NSWSC 1362

HEARING DATE(S) : 15/12/2005

JUDGMENT DATE : 15 December 2005

JUDGMENT OF : Howie J at 1

DECISION : Bail is refused.

CATCHWORDS : Criminal Law - Bail Application - Applicant committed for trial - did not call evidence before magistrate - inappropirate to call defence evidence at bail hearing to attack strength of Crown case - relevance generally of strength of Crown case in bail hearings.

LEGISLATION CITED : Bail Act, 1978 - s 9A

PARTIES : Regina v John Christodoulou

FILE NUMBER(S) : SC 2005/2288

R. Pascoe - Crown SOLICITORS : G. Goold - Applicant

LOWER COURT JURISDICTION :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOWIE J

THURSDAY 15 DECEMBER 2005

2005/2288 REGINA v JOHN CHRISTODOULOU

(VIDEO LINK TO METROPOLITAN REMAND CENTRE)

Ex Tempore JUDGMENT - On application for bail 1 HIS HONOUR: This is an application for bail by John Christodoulou pending his appearance at the Sydney District Court for trial on 27 March 2006. The applicant has been charged with two extremely serious offences. The first is one of detaining for advantage and the second an aggravated sexual assault offence. The Crown allegation in relation to the latter offence is that the applicant threatened the victim complainant with a knife. 2 At the start of this application the applicant's solicitor called the applicant's ex-wife to give evidence. She commenced to answer questions that obviously were only relevant to an issue which will no doubt arise at the trial, and that is whether the complainant's statement to the police is a reliable account of what she says occurred. As I understand the situation, there is no dispute that sexual intercourse occurred between the applicant and the complainant, but the complainant alleges that it was committed without her consent. In fact she gives an account that is to the effect that she was abducted from the street by the applicant and taken to premises where she was sexually assaulted at knifepoint. 3 I indicated to the applicant's solicitor my view that this Court when hearing a bail application should not be used as a substitute or as an addition to committal proceedings. The simple fact is that the applicant has been committed for trial on these charges. The applicant did not call evidence at the committal proceedings. I am not being critical of him but he took that course presumably on the advice of those then representing him. 4 In my opinion in such a situation this Court should not be expected to proceed by hearing evidence that could have been led at the committal proceedings and will no doubt be led at trial simply on the basis of supporting a submission that the Crown case is not weak because there is evidence that can be called attacking the credibility or reliability of the complainant. Bail courts are normally busy and hearing an application such as the present will put at risk the Court's ability to hear every application before it especially at this time of the year. 5 The applicant's solicitor also wished me to read the statements made by the complainant in order to form some view of her reliability based upon inconsistencies or alleged inconsistencies in her statements. Again I do not believe it is a role for this Court to form some assessment of the likelihood of the complainant being accepted by a jury in the absence of seeing the particular witness or giving her an opportunity to explain or comment upon those matters being used against her in these proceedings. At the end of the day the complainant will be giving evidence on oath of the serious allegations that she has made to the police, and it will be for a jury to determine whether or not they are satisfied beyond reasonable doubt that those allegations are both honest and reliable. A magistrate has committed the applicant for trial presumably on the basis that he or she believed that there was a reasonable prospect that a reasonable jury would convict the applicant. 6 It seems to me that the apparent strength of the Crown case is really only a relevant factor on a bail hearing at two ends of the spectrum. If the prosecution can show that on the face of the material before the court that the prosecution case is a strong one so that the likelihood of conviction is highly probable and that a significant gaol sentence is likely to be the result of a conviction, then the court may take the view that these finding give rise to an inference that the applicant is likely to flee the jurisdiction or fail to attend for his trial. That is not an uncommon submission for the prosecution to make in opposing bail and this Court considers it along with other factors that might indicate that the accused person, the applicant for bail, would be likely to attend the trial, such as the presence of strong community ties. 7 At the other end of the spectrum the defence may be able to show that the prosecution case is so weak and the likelihood of conviction so improbable that the accused would be very unlikely to abscond. That submission no doubt has to be considered in the context of the seriousness of the allegation made against the applicant. I am not so sure that an accused person is less likely to flee the jurisdiction when facing very serious offences for which long terms of imprisonment would be imposed, simply because he might believe the prosecution will have little chance of proving its case. 8 This particular application does not fall at either of those extremes. The simple fact is that the applicant has been committed to stand trial on very serious charges. If the jury by accepting the complainant's evidence finds the charges proved, then the applicant is looking at a substantial gaol sentence and the applicant must be aware of that risk. 9 The case however is one where I am prepared to consider the application on the basis that there is a positive case to be called by the applicant at the trial to suggest that the complainant ought not to be believed by the jury. It is not just a case where the jury will have to assess the complainant based upon cross-examination on alleged inconsistencies between her versions at different times. But rather the applicant will be in a position to call witnesses who the jury might find have no reason to give false evidence on his behalf and yet who give a version of events inconsistent with the account given by the complainant. However, I note in passing that two of the witnesses are at least friends or acquaintances of the applicant. The applicant's solicitor was willing to have the application determined on that basis. 10 The applicant has called evidence through his ex-wife as to his need to be in the community notwithstanding the relatively speaking short period of time between this application and the trial. There seems to be basically two reasons put forward. The first is so that the applicant can resume working and earn sufficient money to finance his defence of these proceedings and can also continue renovating a house to ensure it is in a condition to be able to be safely secured. 11 The second reason for his release to bail is so that he might follow possible leads to produce evidence that might tend to assist him in showing that the relationship between the complainant and himself was not as the complainant would suggest. It must be said that the existence of such evidence is very speculative. It is not a case where the applicant knows that there is evidence that he might be able to obtain but rather he lives in the hope that there might be such evidence unearthed by simply asking people whether they can assist him in that regard. There is also some suggestion that he may be able to access records, although I am not sure that the applicant is in any better position to do that than anybody else. 12 The applicant has the benefit of some ties in the community principally being persons with whom he is able to work, and his ex-wife, who stands in very strong support of him. 13 One of the considerations in such matters as this is the protection of the complainant. It particularly arises in this case because there are allegations, which seem to me to be almost beyond dispute, that the applicant has contravened apprehended domestic violence orders on at least two occasions. There is also evidence that the applicant, for whatever reason, has breached that order by assaulting the complainant at a hospital. That allegation is supported by two witnesses and I have no doubt it occurred. That assault was both in breach of the apprehended domestic violence order but more seriously was in breach of bail that was granted to him in respect of an earlier charge of contravening such an order and charges in relation to resisting and assaulting police. 14 It seems to me from a reading of the papers, although the criminal record does not bear it out except on one or two occasions, that the applicant is a person who is very volatile and there are allegations, which at the present I am prepared to accept, of his misconduct at the police station. I understand that he feels frustrated and I understand that the allegations arise in the context of a prior relationship with the complainant, but that is why the legislature is concerned about people who have this type of relationship where there are contraventions of such orders being too readily granted bail. The result is that the applicant falls within section 9A of the Bail Act so that he has the difficulty that he has no presumption in favour of bail. It is not a case that there is a presumption against bail but there is no presumption in his favour, and therefore the issue of whether or not he is granted bail is somewhat neutral. 15 The applicant's ex-wife has given evidence that the applicant has told her that he has no desire to contact the complainant and she believes him. That is all very well. I am not suggesting that the applicant is lying about it or that his wife does not believe him. The difficulty about such assertions, and again this is why the legislature has entered into the field of controlling this type of behaviour, is that unfortunately when the person is at large in the community and the person in the relationship is near at hand, the best of intentions are forgotten and a very minor incident can give rise to serious allegations of assaults and other abusive behaviour. That is to some extent what is suggested in the present case so far as the assault at the hospital is concerned. 16 The applicant therefore faces the problem that he has offences of this nature charged against him. The allegations are extremely serious and, if made out, would result in a significant gaol sentence. Although the Crown case is one which stands or falls to a certain degree on the reliability of the complainant, I have not heard her and I cannot make any assessment of her credibility. Therefore, I cannot form a view as to whether the Crown case is a particularly strong one or a particularly weak one. 17 A relevant matter is also that the applicant has a relatively short period before the trial will commence. There is no reason to think that the trial will not start on 27 March next. It is a matter of weighing up the relevant considerations that tend to suggest on the one hand that the applicant should be granted bail or on the other that bail should be refused. The two matters of concern are the safety of the complainant notwithstanding what the applicant has told his ex-wife, and the difficulty that he faces by his contravention of a previously existing order and the fact that he was on bail at the time of the assault matter. There is in my opinion a possibility of flight. This is a matter that is always difficult to assess, particularly where the applicant has an interest in staying in the community such as the applicant has in his ex-wife and the house that they share. The applicant's ex-wife is prepared to go surety for him by her half in the common property of the house. 18 On the other hand of course, the applicant is to stand trial, as I said, on very serious charges. There is a real risk that he will be convicted and a real risk that he will face a very long time in gaol, therefore a real risk of flight. 19 I have considered the competing considerations as best I can and particularly having regard to the fact that the trial is to take place on 27 March 2006, in my view the proper order to make is that bail be refused. **********